Senate Majority leader Kithure Kindiki addresses journalists after a
Jubilee senators meeting at Laico regency hotel on September 10 2013.
The Senate has passed motion on withdrawal from Rome Statute.
Wednesday, September 11, 2013
The pressure on the government to start the process of
withdrawing from the Rome Statute will increase further after the Senate
Tuesday evening joined the National Assembly in demanding Kenya abandon
the international treaty.
Like their National Assembly
counterparts, senators from the Cord coalition walked out of the
chamber minutes before the motion was put to the vote, in effect
declining to be part of it.
They had however put up a
robust defence on the floor, arguing that the motion was pointless and
would do nothing but annoy the International Criminal Court and put
Kenya in bad light internationally.
In its motion, the
Senate also wants the government to restart the attempt to have the
cases deferred back to the Kenyan courts, which Jubilee said is now
reformed enough to handle them.
Majority Leader Prof
Kithure Kindiki, who authored the motion, has said he would craft it
into a petition and lead a delegation of senators to present it to the
president of the ICC and the United Nations Security Council.
argued that Kenya is not a banana republic and that the Rome Statute
that established the International Criminal Court was designed for
countries considered ungovernable.
As he introduced the
motion, Prof Kindiki, who was initially one of Deputy President William
Ruto’s lawyers at the ICC, said the court cannot be trusted to deliver
“What was created as an institution for
justice has been turned into a vehicle for pursuing international
politics in the most rudimentary, questionable and capricious manner,”
He described the ICC Prosecutor as a rogue
prosecutor who goes from country to country unsupervised ‘wrecking
people’s careers, tarnishing names and destroying individuals’ lives
without accounting to anyone.
Prof Kindiki said Kenyans
“have failed as a nation to protect their own.” “Never again should we
expose our people to such degradation and humiliation as is happening
“There is nothing as humiliating, painful and
embarrassing as a nation watching its three sons being harassed,
tormented and looked down upon simply because there are things we didn’t
do and we are busy playing politics,” he stated.
He said the ongoing proceedings at the ICC represent the darkest moments in independent Kenya.
“Kenyans must wear sack clothes and mourn that the dignity of its nation has been thrown out in tatters,” he said.
debate took long to start and one and a half hours after the Senators
settled in their seats, sideshows and points of order had taken up most
of the time, denying the motion’s supporters the chance to get a
There was a challenge before the debate
could start on whether Speaker Ekwee Ethuro was right to convene the
special sitting, whether the motion was urgent and necessary and when
Prof Kindiki got going, on whether Gladwell Otieno’s name ought to have
When she rose to second the motion, nominated
Senator Beatrice Elachi argued that most of her colleagues in the Senate
“benefitted from the post-election violence” because they were
appointed to government after the National Accord in 2008.
argued that while it was important to appreciate that “We did wrong in
2008 but in between we have institutions that have begun working.”
by Minority Leader Moses Wetang’ula, Cord argued that it wouldn’t be
proper for Kenya to withdraw from an international treaty.
senators argued that the Rome Statute is a deterrent and was the reason
there was no chaos in Kenya despite the fact the results of the General
Election in March were contested.
Wilfred Machage’s amendment to delete the part where the Government
would be required to start the process of withdrawing from the Rome
Statute was defeated.
Tracing the path that led the
Kenyan cases to The Hague, Mr Wetang’ula said he was committed to having
a local trial but was saddened when Parliament twice rejected the Bill
to form a Special Tribunal.
He said Yugoslavia, Sierra
Leone, Democratic Republic of Congo and Sudan are not signatories to the
Rome Statute yet their leaders have been indicted by the International
Arguing that the motion wouldn’t have
an impact on the case, he provoked a furious reaction when he said,
“Courage is not courage if you use courage to knock your head against
the wall. It is called stupidity.”
Mr Wetang’ula said
that given President Kenyatta and DP Ruto have been collaborating with
the ICC, it was rhetorical that the motion would propose that Kenya
continues cooperating and at the same time withdraw from the Rome
He said the motion would only foul the relationship with the ICC rather than make things better for the suspects.
Senator Kiraitu Murungi however insisted that Kenya should exercise its
power to withdraw from international treaties if it feels uncomfortable
“People talk about agreements but forget
that colonialism was introduced in Africa through agreements. Do you not
remember the Maasai agreements?” he posed. “What we have here is an
attempt to recolonize Africa.”
Mr Murungi said the is
ICC funded by countries under a project known as “promoting the rule of
law abroad” and is aimed at countries that have a dysfunctional police,
judiciary and laws.
Kenya does not belong here, he said, and thus the need to leave the Rome Statute.
according to Siaya Senator James Orengo, the better option for now
would be to lobby the African states for amendments to the Rome Statute
as it can now be done.
Busia Senator Amos Wako repeated
an assertion he made as Attorney General that the threshold for
evidence has not been met in the ICC cases for a conviction.
Wako said the fact that Mr Kenyatta and Mr Ruto have elected to
collaborate with the court convinces him they are innocent and hoped
that the court would take judicial note of that matter.
“I believe they will be acquitted. Let them proceed in that manner,” said Mr Wako.
motion, particularly on withdrawal…will not stop the Security Council
from referring such cases to the International Criminal Court,” he
however added as he opposed the motion.